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Baroness Park of Monmouth: The noble and learned Lord has corrected me most helpfully. I accept that but still wonder whether it would not be more appropriate and more in line with what I believe all other ombudsmen do if, when she has reason to think that it is in the public interest that something should be done, she says to the Secretary of State, first, that she believes that an issue should be investigated. He may decide that she is not the proper person to do so because of the problems that it might create in the relationship between her and the police—relationships mentioned by the noble Lord, Lord Fitt—where a certain amount of mutual distrust might arise.

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Therefore, I would want the ombudsman to take no initiative of that kind without previously consulting the Secretary of State. There may be room for that in the legislation, in which case, of course, I shall not pursue the matter further. However, I believe that he would be better placed than her to judge whether it is an appropriate issue for her to investigate. I make a total distinction between that and the normal work of all ombudsmen, which I believe is to listen to the complaints of the public against the police and to investigate those complaints. But this gives her power to investigate major areas of political public policy. There should be a safety mechanism built in somewhere to restrain her because once she has said to the Policing Board "I am going to do this", it will be meaningless that she afterwards mentions it to the Secretary of State. I should like to see some sort of built-in safety mechanism.

I may be making too much of this but a point was made earlier about how important it is that the public should trust the police. The activities of the ombudsman need to be considered in the light of the need not to destroy the reputation of the police without very good reason.

Lord Williams of Mostyn: Perhaps I may respond to the noble Baroness. If the ombudsman decides to conduct an investigation, the Bill requires that:

    "he must immediately inform the Chief Constable, the Board and the Secretary of State".

It is not simply the board that has to be informed immediately, but the Chief Constable and the Secretary of State. If the suggestion is that the Secretary of State should have a veto on the ombudsman's work, I suggest that goes to the very virtue and nature of an independent ombudsman. If there are allegations of state malpractice, surely it should not be for the Executive to determine whether or not investigations should occur.

5.45 p.m.

Baroness Park of Monmouth: I entirely accept that. I simply feel that the judgment of the ombudsman in such issues should be controlled to some extent by beginning with the Secretary of State, so that at least it is possible to say on an issue of timing, "This is the wrong moment to do that", or whatever other reservation he has. I recognise that I seem to be advocating the interference of the Executive in the operations of the police. I accept that and that is why I wish some sort of mechanism could be brought about which does not do that but which enables some thought to be given to it. To judge by the Omagh experience, the ombudsman may not necessarily have a strong understanding of the widening circles of damage that can arise from impulsive, though entirely honourable, intentions.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 24:

    Page 7, line 15, leave out from "that" to end of line 16 and insert "it would be in the public interest to investigate the practice or policy"

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The noble and learned Lord said: This aspect was touched on by the noble Baroness. The amendment concerns new Section 60A, which deals with investigations into police practices and policies. Your Lordships have now agreed that,

    "The Ombudsman may investigate a current practice or policy . . . if . . .

    (b) he has reason to believe that the practice or policy is giving rise to significant public concern."

We have had a good deal of representations that have led us to the conclusion that that is not the best formulation. The better formulation would be "in the public interest". The reason for that is twofold. First—noble Lords have spoken about this—there can be a whipped up rather synthetic agitation based sometimes on misapprehension or sometimes on plain untruths, which would generate significant public concern. Having listened to the representations, we thought that those points were well made. We have suggested, "in the public interest". That would exclude a synthetic agitation because it would not be in the public interest to investigate that.

There is also a deeper point. There are some acts of wrongdoing which are not known to the public. It is in the public interest that they should be exposed and demonstrated but they cause no significant public concern because the public are not aware of them. We thought carefully about the representations we had. I hope this amendment commends itself to the Committee. I beg to move.

Baroness O'Cathain: I am always concerned when I see reference to the public interest. Who determines what is the public interest? I know that public concern and public interest are different but I am slightly concerned about the use of words.

Lord Williams of Mostyn: I take the point made by the noble Baroness and would make two observations. The ombudsman has to make judgments on public interest questions in the context of her other functions, not least, for instance, in deciding which information should be made public, if any. If her decision on what is in the public interest is irrational, she is subject to the control of the court through judicial review.

On Question, amendment agreed to.

Lord Mostyn of Williams moved Amendment No. 25:

    Page 7, line 16, at end insert—

"(1A) But subsection (1) does not authorise the Ombudsman to investigate a practice or policy to the extent that the practice or policy is concerned with conduct of a kind mentioned in section 65(5) of the Regulation of Investigatory Powers Act 2000 (c. 23) (conduct which may be within jurisdiction of tribunal established under section 65 of that Act)."

The noble and learned Lord said: Amendments Nos. 25 and 31 are linked. They set out the parameters within which the ombudsman may operate. The two amendments seek again to address concerns raised. Amendment No. 25—this may chime well with the sort of concerns expressed by the noble Baroness, Lady Park of Monmouth—makes clear that there is not to

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be an overlap between the ombudsman and the machinery set up under the Regulation of Investigatory Powers Act 2000. That was a matter about which we had to think carefully.

Amendment No. 31 explains that while the ombudsman is entitled to have access to all the information she may require to conduct an investigation of a current policy or practice, those responsible for handing over that information are required to identify it as sensitive and to flag up that in their judgment it should not be further disclosed.

We have tried to achieve a prudent balance. I hope Members of the Committee will think we have got it right. I remind the Committee that Section 63 of the Police (Northern Ireland) Act 1998 contains a series of safeguards to prevent improper disclosure by ombudsmen of that type of information. I beg to move.

Lord Maginnis of Drumglass: Perhaps I may point out to the Minister an old saying that there are no secrets in Ulster, and it is one to which he might give some cognisance. The reality is that the Chief Constable may well put an embargo on information passed to the ombudsman's office. As the Minister will recall, even the Secretary of State's office was not secure when it came to determined spying by the IRA. Nor have I any reason to believe that, whatever the integrity of the ombudsman—I do not, for one moment, call that into question—whatever the safeguards relating to her office and the administration in her office, it is unlikely that she could guarantee that sensitive, secret information could be adequately safeguarded.

Although the Minister's intentions are good, they are likely in practice to be ineffective. Therefore, I believe that the amendment is inadequate. It is intended to reassure us, but is not a realistic safeguard against the determination of subversives to gain information. It may be damaging not just to a person or a group of people, but to society as a whole.

Lord Williams of Mostyn: I take the noble Lord's point but that does not derogate from my central proposition that one needs safeguards. After all, Mr Shayler was recently convicted by a jury for a breach of the Official Secrets Act. In the nature of things, that meant that he had breached it, but that would not bring me to the conclusion that we do not need an Official Secrets Act. One has to do the best one can, and we have a reasonable balance here of protecting legitimate interests of different sorts.

Lord Glentoran: I wish to make one point here, not with the amendment itself other than where it refers to Clause 76A(1). I would feel much happier if Clause 76A(1) were Clause 76.

Baroness Park of Monmouth: I am sorry to be difficult again. I see that the general intention is very good. Subsection (2)(b) in Amendment No. 31 says,

    "the person supplying the information is of the opinion that it ought not to be disclosed".

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Subsection (3) of the amendment goes on:

    "The person supplying the information must—

    (a) inform the Secretary of State that the information has been supplied to the Ombudsman".

That seems an extraordinary idea. If it is not suitable to be supplied, here we are accepting that it will have been supplied and then thought will be given to whether it should have been. Have I misunderstood that?

I should also like an answer some time—although obviously it cannot be now—on the security arrangements for vetting the members of the ombudsman's staff.

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